## Facts

- An author contracted with a publisher to write a series of law books.
- The contract paid $2 per page, with potential additional compensation tied to sales, up to a total of $6 per page.
- The contract stated that any payment above $2 per page was dependent on the author’s total abstinence from intoxicating liquors during the contract term.
- The author completed a substantial treatise (3,469 pages), which the publisher published, and the publisher paid only $2 per page.
- The author admitted he did not totally abstain, but alleged his use was not excessive and did not interfere with performance.
- The author alleged the publisher knew of the drinking and expressly stated strict compliance with abstinence was not required, thereby waiving the condition.
- The author also alleged the publisher caused the copyright to be taken in the name of a corporation not party to the contract and sought relief related to the copyright.
- The publisher demurred for failure to state a cause of action; the trial court overruled, the intermediate appellate court sustained, and the author appealed.

## Issues

1. Whether the abstinence clause was an express condition to the author’s right to compensation above $2 per page, rather than a mere promise.
2. If the clause was an express condition, whether it could be waived by the publisher, and whether allegations of an express waiver were sufficient to withstand a demurrer.

## Decision

- The court held the abstinence clause operated as an express condition to the author’s right to any compensation above $2 per page.
- The court held an express condition included for the benefit of one party may be waived by that party through clear words or conduct indicating the condition will not be insisted upon.
- The court held no waiver could be inferred merely from acceptance of the work and payment of $2 per page, because that amount was due regardless.
- Accepting the complaint’s allegation of an express waiver as true on demurrer, the complaint stated a sufficient cause of action for additional compensation.
- The court reversed the order sustaining the demurrer and remanded for further proceedings.

## Legal Principles

- Contract language may create an express condition precedent to a party’s duty to pay additional compensation.
- A party may waive an express condition that exists solely for that party’s protection by indicating it will perform without requiring the condition’s occurrence.
- Waiver of a condition concerning the mode of performance is treated differently from waiver of the contract’s consideration or primary subject matter.
- On a demurrer, well-pleaded allegations of an express waiver are taken as true and can defeat a defense based on nonoccurrence of the condition.
- Acceptance of performance and payment of an amount independently owed does not, by itself, establish waiver of a condition tied only to additional payment.

## Conclusion

The court treated the abstinence term as an express condition to extra payment but held that, because the condition protected only the publisher, it could be expressly waived; the author’s pleaded waiver allegations were sufficient to proceed despite admitted noncompliance.


Clark v. West, 193 N.Y. 349, 86 N.E. 1 (N.Y. 1908)